Unconscious Bias Influences Judges’ Child Custody Decisions

 Posted on May 18, 2018 in Family Law

Child custody is never an easy issue to resolve, even when parents form their own agreement, because the issue is intricately tied to powerful emotions and relationships that are central to the family structure. Settling parenting responsibilities on the heels of divorce becomes even more complex if the Court is asked to decide an arrangement that will govern future interactions.

Sometimes, when parents experience high amounts of conflict, or have legitimate concerns about the child’s welfare, Court intervention is necessary. Because of the importance of child custody, the impartiality of the Judge overseeing the disposition of the case is crucial.

Historically, and according to gender stereotypes, women are traditionally seen as the parent most suited to taking the primary role of caretaker in divorce, with the father receiving much less parenting time comparatively. Recent research into the gender bias affecting the Court system showed that Judges were highly prone to injecting personal bias into child custody decisions that favored the mother, and discouraged the father from taking a meaningful role as caretaker.

Parents engaging a Court process that determines child custody need to understand how Judges are supposed to evaluate this issue, as well as how custody-related disputes are handled.

Division of Parental Responsibilities

Illinois no longer uses the phrase child custody to describe the division of caretaking and decision-making responsibilities for a child. Instead, these duties are now called parental responsibilities, and Judges individually evaluate which parent should handle decisions related to education, health, religious upbringing and extracurricular activities. Thus, one or both parents will not automatically receive authority over these major life decisions, and each matter must be assessed individually.

The circumstances of each case will dictate the outcome, but the overriding standard that guides how the Court decides to allocate these responsibilities is the best interests of the child. A long list of factors, which differs according to whether the Court is looking at decision-making versus parenting time, is applied when considering this standard. However, generally, the Court is looking for an arrangement that will best promote the child’s long-term welfare, while also respecting the rights of each parent.

When dividing parenting time, the law states that each parent is presumed fit and should be given unrestricted parenting time, unless there is evidence a parent could seriously endanger the child’s physical, mental, moral or emotional health. Again, the actual division of time will depend upon the circumstances, though there is a Bill currently under consideration that would require a 50/50 split, absent evidence this would be detrimental to the child.

Deciding Future Child Custody Disputes

Parents who share responsibilities for a child are bound to disagree about some aspects of the child’s upbringing, and will become forced to either compromise or turn to the Court to resolve the dispute.

Before the change in the custody law in 2016, the parent with primary residential custody was permitted to have the final say on major life decisions; however, under the new statute, unsettled disputes over decision-making responsibilities must now be decided by a Family Court Judge. Turning to disputes or denials of parenting time, the law comes down very hard on such actions, as they violate a parent’s rights and are in direct conflict with promoting the child’s welfare.

Petitions related to parenting time disputes are typically handled on an expedited basis, and the law gives Courts a number of options to remedy this situation, including:

• Additional conditions on the allocation of parenting time;
• Requiring one or both parents to attend a parenting education class;
• Requiring participation in counseling; or
• Allowing for make-up parenting time for the parent denied.

Get Legal Advice

Making decisions and sharing time as a divorced parent is hard and does not always offer easy solutions when problems arise. If you have concerns or an active dispute with an ex-spouse, speak with talented Rolling Meadows family law attorney Nicholas W. Richardson about your options. Your children are important and need their interests fully protected. Contact the law firm for a confidential consultation.

Sources:

https://www.eurekalert.org/pub_releases/2018-04/sfpa-grh032918.php

http://www.ilga.gov/legislation/ilcs/ilcs4.asp?DocName=075000050HPt%2E+VI&ActID=2086&ChapterID=59&SeqStart=8350000&SeqEnd=10200000

http://www.ilga.gov/legislation/fulltext.asp?DocName=&SessionId=91&GA=100&DocTypeId=HB&DocNum=4113&GAID=14&LegID=108029&SpecSess=&Session=